Robbins v. Dinkins
| Decision Date | 31 October 1945 |
| Docket Number | 15776. |
| Citation | 35 S.E.2d 697,207 S.C. 308 |
| Parties | ROBBINS v. DINKINS et al. |
| Court | South Carolina Supreme Court |
Shepard K. Nash, of Sumter, for appellant.
DuRant & DuRant, of Manning, for respondent.
This appeal comes to this Court from Clarendon County where a final judgment was entered in an action of S. L. Robbins against V. R. Dinkins in May 1941. Execution was issued under which Homestead was set off on August 6th, and the same day levy was made on a saw and planing mill operated by the defendant V. R. Dinkins in Clarendon County. Notices of adverse claims having been given the Sheriff, this action was begun on August 15, 1941 to determine the respective liens and interests of all of the parties in the said property.
The defendants having answered setting up their various claims the cause was referred to John D. Lee, Special Referee, who made his report. The pertinent parts of which for the purpose of this appeal are:
Pursuant to order of Hon. Philip H. Stoll, Judge of the Third Judicial Circuit, dated August 20, 1941, the undersigned was appointed Special Referee, 'for the trial of this case with instructions to take evidence upon all of the issues involved herein and report same with his findings of law and fact thereon, and that he have leave to report any special matters.' The said order further provides 'that all the parties to this action are required to come in and file any claims that they may have title to or interest in or liens upon the personal property levied upon by the Sheriff in this action and more particularly described in the notices and written claims filed with the Sheriff herein.'
In January 1940, an action was commenced in the Court of Common Pleas for Clarendon County wherein S. L. Robbins was plaintiff, and V. R. Dinkins was defendant. This cause regularly proceeded and resulted in a judgment rendered on March 25, 1941, in favor of the plaintiff, S. L. Robbins, and against the defendant V. R. Dinkins, for the sum of $1,504.15, which judgment was duly entered and enrolled as Judgment Roll No. 7806 in the office of the Clerk of Court for Clarendon County. Thereafter on June 14, 1941, an execution was issued on the aforesaid judgment and placed in the hands of J. E. Gamble, Sheriff of said county. Pursuant to such execution the Sheriff of Clarendon County procured the appointment of appraisers to set off the defendant, V. R Dinkins, a homestead exemption in personal property. These appraisers set off to said defendant as his homestead exemption certain machinery, and thereupon the said Sheriff levied upon all of the remainder of the property used by said defendant in the operation of the sawmill and planing mill plant which was located about three miles from Manning, in Clarendon County. Numerous claimants filed written notices and claims with the Sheriff claiming title to or interest in, or liens upon the personal property so levied upon by the Sheriff. Thereafter, this action was commenced by the said S. L. Robbins, judgment creditor, against V. R. Dinkins, judgment debtor, and against all other known claimants, or creditors, who were required to come into this action and prove their claims.
The defendant, Claud M. Dinkins, filed a notice with the Sheriff claiming that he is the owner of and entitled to immediate possession of 1 75 H. P. Erie City steam engine; 1 H. B. Sturdevant steam engine; and the entire stock of lumber that the said V. R. Dinkins may have at any time at his place of business in Clarendon County, by virtue of default in a chattel mortgage executed to him by V. R. Dinkins dated December 2, 1940 and recorded in Chattel Mortgage Book 62, at page 2573. In his answer this defendant made similar claim to the above mentioned engines and lumber by reason of default in the said chattel mortgage, and he further claimed that the 75 H. P. Erie City Engine above referred to had been purchased by him from the Manning Lumber Company and loaned to the defendant V. R. Dinkins; and he further claimed that he was the owner and entitled to the immediate possession of one 52"' saw blade inserted tooth type; also one 48"' solid tooth saw; also one blower system complete; also one shaft with 'Manning Oil Mill' stamped thereon; also one truck tire and wheel 32 X 6. The above mentioned chattel mortgage was offered in evidence. It is dated December 2, 1940 and duly recorded on April 19, 1941, and states that it secures four notes, each for the sum of $250.00, maturing February 6, 1941, May 6, 1941, August 6, 1941, and November 6, 1941, with interest from the maturity of said notes at the rate of 5% per annum; default in the payment of any of same to make the entire amount due and collectible. This defendant testified that the balance due on said notes was the principal sum of $915 and interest, there having been a payment of $85 on account of the said indebtedness, the date of which payment was not stated. This defendant is a brother of the defendant V. R. Dinkins. He was cross examined as to the items going to make up the indebtedness of $1,000. He testified that he did not keep any books and that the only account which he had was a lumber account which showed a balance due him by his brother on account thereof of the sum of $475.10. The other items going to make up the indebtedness as testified to by him were as follows:
Hauling two boilers from N. C. $200.00
Hauling Edger from Wilmington, N. C. 50.00
Hauling Planer from McBoo, S. C. 50.00
Hauling old boiler, etc., from Charleston, S. C. 40.00
Installing boiler and repairing planer, etc. 175.00
and that these transactions occurred in 1939 and 1940. I think that this defendant has sufficiently established the indebtedness due him and that he should have judgment therefor against V. R. Dinkins, and that the property described in the above mentioned mortgage, or so much as is still owned by the defendant, V. R. Dinkins, should be sold and the proceeds thereof, less the expenses of sale, be applied to the payment and discharge of the said indebtedness.
As to the other items claimed by this defendant in his answer, to wit: 2 saws, a blower system complete, and shaft, and a truck tire and wheel, the evidence is not clear as to how or when these articles came into the possession of the defendant V. R. Dinkins. This defendant, however, testified that he had purchased these items, or the majority of them, in 1932 and 1933. They are not included in the mortgage nor is there any instrument of writing with respect to any of them. The only reasonable inference to be drawn from the testimony is that these articles were placed at the plant of V. R. Dinkins and used by him in his operations prior to the recovery of the judgment by the plaintiff herein and prior to the levy by the Sheriff under the execution issued thereon. Consequently, I think that these articles have now become subject to the lien of that judgment and that any claim of the defendant, Claud M. Dinkins, is junior and subsequent thereto.
Upon exceptions thereto, the Honorable P. H. Stoll passed his decree embodying the following:
'This brother of the debtor V. R. Dinkins, claims under a mortgage for $1000.00, dated December 2nd, 1940. This claimant produces no books and says that he does not keep any--which is peculiar in view of the fact that he is operating a gin and flour mill. He has a carbon copy of an account or several accounts which he claims were...
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